Citation Nr: 0918442
Decision Date: 05/15/09 Archive Date: 05/21/09
DOCKET NO. 98-18 193A ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas
THE ISSUE
Entitlement to service connection for a respiratory disorder
to include asbestosis.
[The issues of entitlement to service connection for
bilateral sensorineural hearing loss and entitlement to
service connection for a sleep disorder are addressed in a
separate decision under a different docket number.]
REPRESENTATION
Veteran represented by: Texas Veterans Commission
WITNESS AT HEARINGS ON APPEAL
The Veteran
ATTORNEY FOR THE BOARD
C. Ferguson, Associate Counsel
INTRODUCTION
The Veteran had active service from November 1963 to
September 1966.
This matter returns to the Board of Veterans' Appeals (Board)
following remands issued in February 2001, November 2003, and
May 2008. This matter was initially on appeal from a
September 1998 rating decision of the Department of Veterans
Affairs (VA) Regional Office (RO) in Waco, Texas.
In October 2000, the Veteran presented hearing testimony
pertinent to the issue on appeal before Veterans Law Judge
Holly E. Moehlmann at a Travel Board hearing. Later, the
Veteran again testified at a Travel Board hearing before
Veterans Law Judge John E. Ormond, Jr. regarding the issue on
appeal. The transcripts of the hearings are associated with
the claims file. Since the law requires that the Veterans
Law Judge who conducts a hearing on appeal must participate
in any decision made on that appeal, this matter will be
decided by a three member panel of Veterans Law Judges, which
will include the two Veterans Law Judges that presided over
the Board hearings. See 38 U.S.C.A. § 7102 (West 2002); 38
C.F.R. § 20.707 (2008).
The Board notes that the lengthy procedural history of this
case was previously discussed in the introduction portion of
the May 2008 Board Remand. The case now again returns to the
Board for appellate consideration following the completion of
additional development pursuant to the Board's remand.
FINDING OF FACT
A respiratory disorder manifested by sleep hypoventilation
has been linked to active military service by competent
medical opinion.
CONCLUSION OF LAW
A respiratory disorder characterized by sleep hypoventilation
was incurred during active military service. 38 U.S.C.A. §§
1110, 1131, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.303
(2008).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA)
The VCAA describes VA's duty to notify and assist claimants
in substantiating a claim for VA benefits. 38 U.S.C.A.
§§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R.
§§ 3.102, 3.156(a), 3.159 and 3.326(a) (2008).
Upon receipt of a complete or substantially complete
application for benefits, VA is required to notify the
claimant and his or her representative, if any, of any
information, and any medical or lay evidence, that is
necessary to substantiate the claim. 38 U.S.C.A. § 5103(a)
(West 2002); 38 C.F.R. § 3.159(b) (2008); Quartuccio v.
Principi, 16 Vet. App. 183 (2002). Proper VCAA notice must
inform the claimant of any information and evidence not of
record (1) that is necessary to substantiate the claim; (2)
that VA will seek to provide; (3) that the claimant is
expected to provide. The Board notes that the requirement of
requesting that the claimant provide any evidence in his or
her possession that pertains to the claim was eliminated by
the Secretary during the course of this appeal. See 73 Fed.
Reg. 23353 (final rule revising 38 C.F.R. § 3.159(b) to
rescind fourth element notice as required under Pelegrini II,
effective May 30, 2008).
VCAA notice should be provided to a claimant before the
initial unfavorable agency of original jurisdiction (AOJ)
decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112
(2004). But see Mayfield v. Nicholson, 19 Vet. App. 103, 128
(2005), rev'd on other grounds, Mayfield v. Nicholson, 444
F.3d 1328 (Fed. Cir. Apr. 5, 2006) (when VCAA notice follows
the initial unfavorable AOJ decision, remand and subsequent
RO actions may "essentially cure [] the error in the timing
of notice"). VCAA notice should also apprise the claimant
of the criteria for assigning disability ratings and for
award of an effective date. Dingess/Hartman v. Nicholson, 19
Vet. App. 473 (2006).
In light of the full grant of benefits sought on appeal in
this decision, no further notification or assistance is
necessary to develop facts pertinent to this claim. To the
extent that there is any notice deficiency, such will be
remedied by the agency of original jurisdiction (AOJ) when
effectuating the award of benefits.
Analysis
The Veteran seeks entitlement to service connection for a
respiratory disorder to include asbestosis.
Service connection may be granted for disability or injury
incurred in or aggravated by active military service. 38
U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a)
(2008). As a general matter, service connection for a
disability on the basis of the merits of such claim requires
(1) the existence of a current disability; (2) the existence
of the disease or injury in service, and; (3) a relationship
or nexus between the current disability and any injury or
disease during service. Cuevas v. Principi, 3 Vet. App. 542
(1992).
If a condition noted during service is not shown to be
chronic, then generally a showing of continuity of symptoms
after service is required for service connection. 38 C.F.R.
§ 3.303(b) (2008). Service connection may also be granted
for any disease diagnosed after discharge, when all the
evidence, including that pertinent to service, establishes
that the disease was incurred in service. 38 C.F.R.
§ 3.303(d) (2008).
Initially, the Board notes that the medical evidence does not
show that the Veteran currently suffers from asbestosis. In
this regard, the Board recognizes that a private physician
wrote in a December 1997 letter that the Veteran's October
1997 chest x-rays showed parenchymal abnormalities consistent
with asbestosis. However, the August 2008 VA respiratory
examiner found that the Veteran did not have asbestosis. He
explained that the chest x-ray and pulmonary function tests
done at that time did not include findings consistent with
asbestosis. He further noted that pulmonary function tests
in the past were normal. As the respiratory examiner
provided a sound rationale for his conclusion and based his
conclusion on review of the claims folder to include the
December 1997 letter as well as current examination findings,
the Board affords his opinion greater probative value than
the earlier opinion provided by the private physician.
Moreover, the Board notes that the August 2008 respiratory
examiner's conclusion is essentially consistent with the
conclusions drawn by VA respiratory examiners in September
2001 and August 2004.
Nevertheless, the medical evidence does show that the Veteran
has a current respiratory disorder that is related to his
period of active service. While the Board observes that the
Veteran's service treatment records are absent of any
references to respiratory problems, it is noted that the
Veteran competently reported at the August 2008 VA
respiratory examination that he first began to experience
hypersomnolence in 1967 and has continued to experience such
symptomatology since that time. Layno v. Brown, 6 Vet. App.
465, 469-70 (1994); Jandreau v. Nicholson, 492 F.3d 1372 (Fed
Cir. 2007). The Board notes that the respiratory examiner
found the Veteran's account credible upon review of the
claims folder and interview of the Veteran and there is no
evidence in the record that contradicts the Veteran's
account. Also, while the respiratory examiner noted that the
Veteran did not have obstructive sleep apnea as recorded on a
sleep study in 2001, he did find that the Veteran currently
had sleep hypoventilation, which could lead to significant
sleep disturbances, that was as likely as not present while
in service.
The Board notes that hypoventilation is defined as a state in
which there is a reduced amount of air entering the pulmonary
alveoli resulting in increased carbon dioxide tension. See
Dorland Illustrated Medical History, 30th Edition. Upon
consideration of its definition, the Board notes that
hypoventilation is not, in and of itself, shown to be a
chronic respiratory disability.
However, it is noted that the August 2004 VA respiratory
examiner previously diagnosed the Veteran with sleep
disordered breathing due to his nocturnal hypoventilation
leading to hypoxemia and excessive daytime somnolence.
Similarly, the May 2001 VA respiratory examiner noted a
diagnosis of sleep disordered breathing based on examination
of the Veteran and sleep studies, explaining that central
apnea with significant hypoxemia was more likely than not
resulting in subjective excessive daytime somnolence. Thus,
while it is not clear that "sleep disordered breathing"
sufficiently specifies the current respiratory disorder from
which the Veteran suffers and the Board recognizes that
August 2008 VA respiratory examiner was somewhat vague in
identifying the precise chronic respiratory disorder to which
the Veteran's hypoventilation is attributed, it is clear that
a respiratory disorder manifested by sleep hypoventilation
has been clinically identified. Moreover, the August 2008
examiner specifically linked this respiratory disorder to the
Veteran's period of active military service.
Thus, in consideration of the foregoing, the Board finds that
service connection for a respiratory disorder characterized
by sleep hypoventilation is warranted in this case.
38 C.F.R. § 3.303 (2008).
(CONTINUED ON NEXT PAGE)
ORDER
Entitlement to service connection for a respiratory disorder
characterized by sleep hypoventilation is granted.
Holly E. Moehlmann John E. Ormond, Jr.
Veterans Law Judge
Veterans Law Judge
Board of Veterans' Appeals
Board of Veterans' Appeals
________________________________
Michelle L. Kane
Veterans Law Judge
Board of Veterans' Appeals
Department of Veterans Affairs